Sample Briefs And ​Arguments

The best way to understand the caliber of craftsmanship that Attorney Powers brings to a case is to read one of his briefs or to watch one of his arguments.

---

Oral argument.

Meyer v. Veolia Energy North America, SJC-12606

On January 10, 2019, Kevin argued the case of Meyer v. Veolia Energy North America, SJC-12606, before the Supreme Judicial Court of Massachusetts.  The video of that oral argument is available in the video player above.
​

Civil appellate briefs.

Meyer v. Veolia Energy North America, SJC-12606

The briefs for the Appellant-Plaintiff in Meyer v. Veolia Energy North America, SJC-12606 are available at the following links:

Brief For Appellant-Plaintiff

Reply Brief For Appellant-Plaintiff

On May 8, 2019, the Massachusetts Supreme Judicial Court overruled three prior Massachusetts Appeals Court decisions to hold in favor of the arguments advanced in our brief.  In so doing, the Court reached back to the statutes originally enacted during the era of the Salem Witch Trials, and relied upon one of the earliest decisions authored by former Massachusetts Supreme Judicial Court Justice Oliver Wendell Holmes, Jr., later an Associate Justice and Acting Chief Justice of the United States Supreme Court.  The decision represents a watershed moment in Massachusetts tort law.

The opinion of the Court in Meyer v. Veolia Energy North America is available at the following link: Meyer v. Veolia Energy North America, 482 Mass. 208 (2019)

Note: ​The Massachusetts Supreme Judicial Court took Meyer v. Veolia Energy North America from the Massachusetts Appeals Court sua sponte; as a result, the briefs, aside from cover pages, are identical to the briefs originally filed in the Massachusetts Appeals Court relative to this matter.

Amicus curiae appellate briefs.

Malachi M. v. Quintina Q., SJC-12674

In Malachi M. v. Quintina Q., SJC-12674, a family law/domestic relations case, Attorney Powers and four co-authors argued that the Massachusetts Supreme Judicial Court (SJC) should allow a trial court hearing a modification of custody case to consider domestic violence allegations pre-dating the prior custody order, but that the trial court should have discretion to prevent "serial litigants" from perpetually re-fighting the same allegations when the best interests of the children so demand.  Kevin had previously represented a client whose appeal turned on the proper interpretation of the relevant statute.  After the Massachusetts Appeals Court resolved the appeal in that client's case, Attorney Powers learned that the SJC had taken up Malachi M., a case involving the same legal issue.  By co-authoring and filing an amicus curiae brief on behalf of his client and his client's children, Kevin ensured that his client's voice would be heard when the SJC issued a definitive construction of the controlling statute.

In its decision, the Court held that a trial court must consider domestic violence allegations pre-dating the prior custody order, but that the trial court has discretion to limit the admission of evidence to prove those domestic violence allegations, a safeguard very similar to the safeguards for which Attorney Powers and his co-authors advocated in the amicus curiae brief.

The amicus curiae brief in Malachi M. v. Quintina Q. is available at the following link: Amicus Curiae Brief For D.M., A Father, And The Six M. Children

The opinion of the Court in Malachi M. v. Quintina Q. is available at the following link: Malachi M. v. Quintina Q., 483 Mass. 725 (2019)

MATA Amicus Curiae Appellate Briefs

As Interim Chair and Vice Chair of the Amicus Committee of the Massachusetts Academy Of Trial Attorneys (MATA), Attorney Powers has drafted and edited amicus curiae briefs filed with the Massachusetts Supreme Judicial Court (SJC).  Several of those briefs are the following:

Note:  All MATA amicus curiae briefs reflect the research, writing, and editing contributions of a team of skilled appellate attorneys, of which Kevin has been proud to be a part.

Kauders v. Uber Techs., Inc., SJC-12883

In Kauders v. Uber Techs., Inc., SJC-12883, a tort case raising an issue of contract law, MATA and the American Association For Justice (AAJ) jointly argued that a user of the Uber smartphone app did not enter an enforceable arbitration contract when he clicked through an initial app screen that concealed fine print legalese behind a button indicating that the user was "done" entering credit card information.  MATA and AAJ first argued that the United States Court of Appeals for the First Circuit correctly held that the Uber click-through process did not satisfy the Massachusetts requirements of an enforceable contract because that process does not present conspicuous contract terms and did not prove that the user accepted those terms.  MATA and AAJ then argued that Uber had demonstrated elsewhere that it was perfectly capable of providing conspicuous notice, because it did so in its click-through agreements with drivers.  Finally, MATA and AAJ extensively documented the inadequacy of arbitration in lieu of litigation in the consumer context.

In its decision, the SJC held that the Uber click-through process did not create an enforceable contract because it provided neither reasonable notice of contract terms nor reasonable manifestation of assent by the user.  The SJC noted that Uber required its drivers, in stark contrast to its users, to twice confirm acceptance of contract terms.  Therefore, there was no enforceable agreement between Uber and the user, and the dispute was not arbitrable.

The amicus curiae brief in Kauders v. Uber Techs., Inc. is available at the following link: Amicus Curiae Brief For The Massachusetts Academy Of Trial Attorneys and The American Association For Justice

The opinion of the Court in Kauders v. Uber Techs., Inc. is available at the following link: Kauders v. Uber Techs., Inc., SJC-12883

Mendes's Case, SJC-12857
​
In Mendes's Case, SJC-12857, a workers' compensation case arising from an employee truck driver who was hired in Pennsylvania and injured in Maine, but who lived in Massachusetts, performed much of his work in Massachusetts, and received medical treatment in Massachusetts, MATA argued that Massachusetts has subject matter jurisdiction over a workers' compensation claim, even when both the place of hire and the place of injury are outside Massachusetts, when the employment was located in Massachusetts through "sufficient contacts" with Massachusetts.  MATA first argued that the "sufficient contacts" test, adopted in New York, Connecticut, and several other jurisdictions, is merely an extension of the "localization" rule already applicable in Massachusetts and advances the policies of the Massachusetts Workers' Compensation Act.  MATA then argued that Massachusetts had subject matter jurisdiction over this workers' compensation claim because the employee truck driver was a Massachusetts resident, parked his car in Massachusetts, learned of the job through a Massachusetts newspaper advertisement, and performed deliveries in Massachusetts.

In its decision, the SJC adopted the "significant contacts" test.  The SJC held that Massachusetts had subject matter jurisdiction over the employee truck driver's workers' compensation claim because there were sufficient contacts between Massachusetts and the employment such that the employment relationship was located in Massachusetts.

The amicus curiae brief in Mendes's Case is available at the following link: Amicus Curiae Brief For The Massachusetts Academy Of Trial Attorneys

The opinion of the Court in Mendes's Case is available at the following link: Mendes's Case, 486 Mass. 139 (2020)

Green Mountain Ins. Co., Inc. v. Wakelin, SJC-12760
​
In Green Mountain Ins. Co., Inc. v. Wakelin, SJC-12760, an insurance coverage case arising from the tragic death of four youths from carbon monoxide poisoning in a Maine cabin, MATA argued that a homeowner's insurance policy excluding uninsured property did not exclude the carbon monoxide poisoning caused by a portable generator at an uninsured property.  MATA first argued that both Massachusetts law and the weight of authority in other jurisdictions hold that an "other premises" exclusion applies only to conditions "arising out of a premises" and that this rule is consistent with the reasonable expectations of insured homeowners.  MATA then argued that a portable generator is not part of a "premises" and that the injuries resulted from the homeowner's personal negligence rather than out of the premises.

In its decision, the SJC held that an "other premises" exclusion applies only to conditions "arising out of" an uninsured premises and not to conditions merely "occurring on" an uninsured premises.  The accident involving the portable generator did not "arise out of" the uninsured cabin in Maine, and the "other premises" exclusion therefore did not apply bar coverage.

The amicus curiae brief in Green Mountain Ins. Co., Inc. v. Wakelin is available at the following link: Amicus Curiae Brief For The Massachusetts Academy Of Trial Attorneys

The opinion of the Court in Green Mountain Ins. Co., Inc. v. Wakelin is available at the following link: Green Mountain Ins. Co., Inc. v. Wakelin, 484 Mass. 222 (2020)

​Aquino v. United Prop. & Cas. Co., SJC-12705

In Aquino v. United Prop. & Cas. Co., SJC-12705, an insurance coverage case involving an alleged arson of an insured property by one of two co-insureds, MATA argued that a court must reform a homeowner's insurance policy purporting to exclude coverage to an innocent co-insured due to the intentional act of another co-insured, so as to allow coverage to that innocent co-insured.  Any homeowner's insurance policy purporting to exclude such coverage is contrary to the Massachusetts standard statutory fire insurance policy.  In a second argument, MATA argued that the innocent co-insured should recover the entire undivided value of the policy.  In a third argument, MATA argued that the insurance carrier, in writing and selling an insurance policy contrary to the Massachusetts standard statutory fire insurance policy, committed an unfair or deceptive act or practice in violation of the Massachusetts Consumer Protection Act and the Massachusetts Unfair and Deceptive Acts or Practices in the Business of Insurance Act.

In its decision, the SJC held that a court must reform a homeowner's insurance policy purporting to exclude coverage to an innocent co-insured due to the intentional act of another co-insured.  The Court did not, however, hold that the innocent co-insured was entitled to recover the entire undivided value of the policy, or that the insurance carrier committed an unfair or deceptive act or practice by writing and selling an insurance policy contrary to the Massachusetts standard statutory fire insurance policy.

The amicus curiae brief in Aquino v. United Prop. & Cas. Co. is available at the following link: Amicus Curiae Brief For The Massachusetts Academy Of Trial Attorneys

The opinion of the Court in Aquino v. United Prop. & Cas. Co. is available at the following link: Aquino v. United Prop. & Cas. Co., 483 Mass. 820 (2020)

Hedberg v. Wakamatsu, SJC-12624

In Hedberg v. Wakamatsu, SJC-12624, a medical malpractice case, MATA and the AAJ argued that the statements of a medical student are admissible against the supervising physician, either as the statements of an agent against a principal or as statements of a witness who is unavailable due to professed lack of memory on the part of the medical student.  In the former argument, MATA and the AAJ urged that the SJC hold that an agency relationship exists between a medical student and a supervising physician.  In the latter argument, MATA and the AAJ urged that the SJC adopt Mass. G. Evid. § 804(a)(3) and hold that lack of memory is a ground for finding that a witness is unavailable for purposes of hearsay exceptions.

In a decision that changed Massachusetts evidence law as MATA and the AAJ argued in their amicus brief, the Court adopted Mass. G. Evid. § 804(a)(3) and held that a trial court may find that a hearsay declarant is unavailable if that hearsay declarant professes a lack of memory as to the subject matter of the hearsay.

The amicus curiae brief in Hedberg v. Wakamatsu is available at the following link: Amicus Curiae Brief For The American Association For Justice and The Massachusetts Academy Of Trial Attorneys

The opinion of the Court in Hedberg v. Wakamatsu is available at the following link: Hedberg v. Wakamatsu, 482 Mass. 613 (2019)

Stearns v. Met. Life Ins. Co., SJC-12544

In Stearns v. Met. Life Ins. Co., SJC-12544,  an asbestos litigation matter, the Federal District of Massachusetts sent a certified question to the SJC.  In an expansive brief including, in the addendum, a complete survey of the law in all fifty states, MATA urged the Court to hold that the statute of repose does not apply to asbestos illnesses or to other latent illnesses.  In the alternative, MATA urged that the statute of repose does not apply to asbestos illnesses or to other latent illnesses where a defendant had knowing control of the instrumentality of injury at the time of exposure.

Despite the best efforts of MATA, the Court held that the statute of repose does apply to asbestos illnesses and other latent illnesses.  

The amicus curiae brief in Stearns v. Met. Life Ins. Co. is available at the following link: Brief Of Amicus Curiae Massachusetts Academy Of Trial Attorneys

The opinion of the Court in Stearns v. Met. Life Ins. Co. is available at the following link: Stearns v. Met. Life Ins. Co., 481 Mass. 529 (2019)

​Everest Nat'l Ins. Co. v. Berkeley Place Restaurant Ltd. Partnership, SJC-12550

In Everest Nat'l Ins. Co. v. Berkeley Place Restaurant Ltd. Partnership, SJC-12550, a subrogation action, MATA urged the Court to recognize the duty of reasonable care that a valet owes to the general public to refuse to turn car keys over to a driver who appears intoxicated, or in the alternative, to take affirmative steps to notify law enforcement upon handing the keys over to such a driver.  On the day before the scheduled oral argument, nineteen days after MATA filed its brief, the parties settled the case.

The amicus curiae brief in Everest Nat'l Ins. Co. v. Berkeley Place Restaurant Ltd. Partnership is available at the following link: Amicus Curiae Brief For The Massachusetts Academy Of Trial Attorneys

Correa v. Schoeck, SJC-12409

In Correa v. Schoeck, SJC-12409, a wrongful death action, MATA and the AAJ jointly urged the Court to recognize the duty of reasonable care that a pharmacy owes to its customer to notify her physician that her insurer will not pay for her prescription medication without prior authorization.

​In a decision that cited several of the authorities that MATA raised in its brief, the Court recognized that Walgreens had a limited duty to take reasonable steps to notify both the patient and her prescribing physician of the need for prior authorization each time she tried to fill her prescription.  Correa v. Schoek, 479 Mass. 686, 693 (2018).  Walgreens's duty extends no further, however—the pharmacy was not required to follow up on its own or to ensure that the prescribing physician in fact received the notice or completed the prior authorization form.  Id. at 699-700.

The amicus curiae brief in Correa v. Schoeck is available at the following link:  Amicus Curiae Brief For The American Association Of Justice and The Massachusetts Academy Of Trial Attorneys

The opinion of the Court in Correa v. Schoeck is available at the following link: Correa v. Schoeck, 479 Mass. 686 (2018)

Interlocutory appeal petitions.

DeLuca v. Ballard Designs, Inc., Massachusetts Appeals Court No. 2020-J-0333

Massachusetts imposes a strict deadline on parties filing an interlocutory appeal petition.  Consequently, in DeLuca v. Ballard Designs, Inc., Massachusetts Appeals Court No. 2020-J-0333, Kevin simultaneously argued in a Petition to the Single Justice of the Appeals Court and in a Motion For Reconsideration to the Superior Court that the Superior Court had committed an abuse of discretion when it denied the plaintiff's second motion to amend her complaint to add a new defendant and new claims for warranty and violation of G.L. c. 93A.

First, Attorney Powers argued that warranty and G.L. c. 93A claims cannot be futile where still-remaining negligence claims are not futile and, thus, the Superior Court's stated ground of futility was not a grounds for denying the plaintiff's motion.  Second, Kevin argued that an automatic stay in bankruptcy, a modification of that automatic stay to permit the plaintiff to establish liability and seek recovery solely from applicable insurance policies, and a subsequent coverage opinion by an insurance adjuster, implicate collection only and not the viability of a claim; further, a coverage opinion by an insurance adjuster is not an adjudication of coverage by a court.

Kevin filed the interlocutory appeal in the Appeals Court and trial counsel filed a substantively identical motion for reconsideration in the Superior Court.  Following oral argument in the Superior Court, that court reversed itself and allowed the plaintiff's second motion to amend complaint.  As the plaintiff had thereby achieved the relief that she sought, the Single Justice of the Appeals Court dismissed the interlocutory appeal petition sua sponte.

The pleadings for the Plaintiff-Petitioner in DeLuca v. Ballard Designs, Inc., Massachusetts Appeals Court No. 2020-J-0333, are available at the following links:

Petition For Plaintiff-Petitioner

Memorandum of Law in Support of Petition For Plaintiff-Petitioner

The dismissal by the Single Justice of the Appeals Court in DeLuca v. Ballard Designs, Inc. is available at the following link: DeLuca v. Ballard Designs, Inc., Massachusetts Appeals Court No. 2020-J-0333 (2020)

Criminal appellate briefs.

During his five years as an Assistant District Attorney, Kevin wrote numerous appellate briefs on various issues in criminal cases.  A selection of those briefs will soon be available here.

Note:  The Appeals Unit of a District Attorney's Office is inevitably a team environment in which few, if any, briefs would ever be filed without suggested edits from one or more fellow appellate attorneys.  In addition, certain information has been redacted from all of the following briefs.

Law review articles.

Note, David Hasselhoff No Longer Owns the Only Talking Car: Automotive Black Boxes in Criminal Law, 39 Suffolk U. L. Rev. 289 (2005)

In 2005, Kevin, then serving as Associate Managing Editor of the Suffolk University Law Review, published one of the first academic treatments of automotive "black box" data recorders in the context of criminal law.  The Massachusetts Appeals Court, the New Jersey Superior Court, and the Texas Superior Court have since cited that article, named with just a slight wink and chuckle after the television show Knight Rider and the actor who played its eponymous hero. See Commonwealth v. Zimmerman, 70 Mass. App. Ct. 357 (2007); see also McAlonan v. Toyota Motor Corp., 2008 WL 10672959 (N.J. Super. Ct. May 19, 2008); Cummings v. Dancer, 2019 WL 3428791 (Tex. Dist. Ct. Feb. 19, 2019). Legal treatises and academic journals that have cited the Hasselhoff article include American Jurisprudence (AmJur), American Law Reports 6th Edition (A.L.R. 6th), Search & Seizure: A Treatise on the Fourth Amendment,  the New York State Bar Journal, the Richmond Journal of Law and Technology, the Rutgers Computer and Technology Law Journal, the Temple Journal of Science, Technology, and Environmental Law, and the Washington & Lee Journal of Civil Rights and Social Justice.

The link to David Hasselhoff No Longer Owns the Only Talking Car: Automotive BLack Boxes in Criminal Law is available at the following link: Note, David Hasselhoff No Longer Owns the Only Talking Car: Automotive Black Boxes in Criminal Law, 39 Suffolk U. L. Rev. 289 (2005)

Legal magazine and legal newspaper articles.

Kevin writes articles for legal magazines and legal newspapers on emergent issues in the law and on appellate practice generally.  Some of those articles are available at the following links:

Article, Forging an Effective Appellate Brief, in American Association for Justice Trial Magazine, January 2023.

Article, An appellate roadmap, Part 7, in Massachusetts Academy of Trial Attorneys Journal, November 2022.

Article, An appellate roadmap, Part 6, in Massachusetts Academy of Trial Attorneys Journal, May 2022.

Article, Worth a Thousand Words: Visual Aids in Appellate Briefs Under Amended Mass. R. App. P. 20(a)(1)(B), in Worcester County Bar Association Legal Lines, April 2022.

Article, Inherent diminished value: 'McGilloway v. Safety Ins. Co.,' in Massachusetts Academy of Trial Attorneys Journal, March 2022.

Article, Is there legislative fix for medical records nightmare?, in Massachusetts Academy of Trial Attorneys Journal, March 2022.

Article, An appellate roadmap, Part 5, in Massachusetts Academy of Trial Attorneys Journal, November 2021.

Article, 'All means all' in 'Shaws v. Melendez' case, in Massachusetts Academy of Trial Attorneys Journal, November 2021.

Article, An appellate roadmap, Part 4, in Massachusetts Academy of Trial Attorneys Journal, May 2021.

Article, An appellate roadmap, Part 3, in Massachusetts Academy of Trial Attorneys Journal, March 2021.

Article, The Amended Massachusetts Appeals Court Rules, in Worcester County Bar Association Legal Lines, February 2021.

Article, Update on HITECH medical records requests, in Massachusetts Academy of Trial Attorneys Journal, November 2020.

Article, An appellate roadmap, Part 2, in Massachusetts Academy of Trial Attorneys Journal, November 2020.

Article, An appellate roadmap, Part 1, in Massachusetts Academy of Trial Attorneys Journal, June 2020.

Article, HITECH medical records requests in the wake of Ciox, in Massachusetts Academy of Trial Attorneys Journal, March 2020.

Article, 'Sorry, Bruh': Issues Relative to Electric Scooters, in Massachusetts Academy of Trial Attorneys Journal, May 2019.

Article, MATA Amicus Committee Update, in Massachusetts Academy of Trial Attorneys Journal, March 2019.

Case Summary, Adoption of Bea, 97 Mass. App. Ct. 416 (2020), in Worcester County Bar Association Legal Lines, December 2020.

Case Summary, Dep't of Revenue v. Grullon, 485 Mass. 129 (2020), in Worcester County Bar Association Legal Lines, December 2020.

Case Summary, Adoption of Daphne, 484 Mass. 421 (2020), in Worcester County Bar Association Legal Lines, November 2020.

Case Summary, Adoption of Helga, 97 Mass. App. Ct. 521 (2020), rev. denied, 485 Mass. 1101 in Worcester County Bar Association Legal Lines, November 2020.

Case Summary, Adoption of West, 97 Mass. App. Ct. 238 (2020), in Worcester County Bar Association Legal Lines, October 2020.

Case Summary, Shak v. Shak, 484 Mass. 658 (2020), in Worcester County Bar Association Legal Lines, October 2020.

Case Summary, Adoption of Luc, 484 Mass. 139 (2020), in Worcester County Bar Association Legal Lines, April 2020.

Case Summary, Stacy v. Stacy, 97 Mass. App. Ct. 160 (2020), in Worcester County Bar Association Legal Lines, April 2020.

Case Summary, Guardianship of Tara, Appeals Court No. 18-P-1531 (2020), in Worcester County Bar Association Legal Lines, March 2020.

Case Summary, Frazier v. Frazier, Appeals Court No. 19-P-178 (2019), in Worcester County Bar Association Legal Lines, February 2020.

Case Summary, Macri v. Macri, 96 Mass. App. Ct. 362 (2019), in Worcester County Bar Association Legal Lines, February 2020.

Case Summary, Rose v. Rose, Appeals Court No. 18-P-59 (2019), in Worcester County Bar Association Legal Lines, December 2019.
​

Book reviews.

Not all writing by a lawyer amounts to mortal combat. Kevin has written book reviews for the New Hampshire Bar News, and those book reviews are available at the following links:

Book Review: A Fascinating Portrait of Accomplishment & Reinvention, in New Hampshire Bar News, January 15, 2020.
​
Book Review: Highly Readable Stories from the Family Law Trenches, in New Hampshire Bar News, July 16, 2014.

Book Review: A Dignified Discussion of the Legal Market: Is the Bubble About to Burst?, in New Hampshire Bar News, May 21, 2014.
​